Southern California -- this just in

Judge to consider whether to dismiss challenge to Prop. 8

October 14, 2009 | 5:00
am

A federal judge today will consider whether to dismiss a lawsuit against Proposition 8, last year's ballot measure that reinstated a ban on same-sex marriage in California.

U.S. District Court Judge Vaughn R. Walker, who will hear arguments in San Francisco, must decide whether to proceed with a trial scheduled for January or throw out the constitutional challenge on purely legal grounds.

Walker has previously said he believes a trial is needed to develop a factual record for higher courts. The case is eventually expected to reach the U.S. Supreme Court.

But backers of the ballot measure contend that a trial is unnecessary because the law is already clear.

They point to a 1972 case out of Minnesota. The Minnesota Supreme Court rejected an equal protection challenge to a law limiting marriage to opposite-sex couples. The U.S. Supreme Court refused to hear an appeal of the Michigan court ruling, letting it stand.

UC Irvine Law School dean Erwin Chemerinsky, an expert on the federal constitution, said the high court's denial of review was not a binding decision that lower courts must follow.

"A denial of review has no precedential impact," Chemerinsky said.

Proposition 8 backers also say that there is no constitutional right for gays and lesbians to marry because marriage has long been defined as a union between a man and a woman.

Walker previously ordered the Proposition 8 campaign to disclose its internal memorandums and communications to gay rights lawyers. The campaign is appealing that order to the U.S. 9th Circuit Court of Appeals on 1st Amendment grounds.